Taylor v. University of Utah

2019 UT App 14

THE UTAH COURT OF APPEALS

RICHARD TAYLOR
AND DEANNE TAYLOR,
Appellants,
v.
UNIVERSITY OF UTAH, UNIVERSITY HOSPITAL,
AND UNIVERSITY OF UTAH PHYSICAL
MEDICINE AND REHABILITATION CLINIC,
Appellees.

Opinion
No. 20170678-CA
Filed January 17, 2019

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 140903769

James W. McConkie, Bradley H. Parker, and
W. Alexander Evans, Attorneys for Appellants
Curtis J. Drake and Parker A. Allred,
Attorneys for Appellees

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

HAGEN, Judge:

¶1 Richard Taylor and Deanne Taylor (the Taylors) appeal
the district court’s decision to exclude the testimony of their
causation expert in this medical malpractice case. The district
court ruled that the Taylors had not made a threshold showing
of reliability because the expert testimony was based on
insufficient facts and data. Because neither the expert’s
experience nor the relevant medical literature provided a
Taylor v. University of Utah

sufficient factual basis to support the expert’s conclusion about
causation, we affirm.

BACKGROUND

¶2 The Taylors’ daughter (the patient) was diagnosed at a
young age with a neurological disorder for which part of her
treatment was to receive intrathecal baclofen, a drug
administered by a catheter and pumped into the thecal sac
located around the spinal cord. In 2013, a neurosurgeon replaced
the patient’s pump, but not the catheter connected to the pump.

¶3 About one month later, the patient experienced increased
spasticity in her legs, which can be a side effect of baclofen
withdrawal. The patient received an oral dose of baclofen in an
attempt to reduce the spasticity. A physician reassessed the
patient a few hours later, determined that there had been no
change of symptoms, and continued the oral dosages of
baclofen. The patient also underwent an x-ray examination,
which did not show any obvious problems with the pump or
catheter. The physician instructed the patient to return the
following day for further evaluation.

¶4 On April 18, 2013, the patient “underwent a dye and
rotator study of the pump and catheter,” but the study showed
no obvious signs of a problem. Nevertheless, the physician
“thought an undetected problem with the pump and catheter
might still be possible.” At the same time, the patient had
difficulty keeping down the oral doses of baclofen due to
vomiting. After discussing the patient’s medical history and
symptoms with the neurosurgeon, the physician recommended
that the patient undergo surgery to replace both the pump and
catheter. The following day, the patient underwent the
replacement surgery and her intrathecal baclofen dosage was
reinstated. According to her sister, the patient was “back to
herself” by April 20, 2013.

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¶5 In early May, a few weeks after the baclofen pump and
catheter were replaced, the patient began exhibiting “manic-like,
psychotic behavior.” The Taylors took the patient to a different
doctor (the expert) to monitor the patient’s baclofen treatment.
Initially, the expert concluded that the patient’s “manic-like
behavior was caused by baclofen overdose” and, at the expert’s
“direction, all baclofen was stopped by late May 2013.” The
expert later concluded that the patient’s change in behavior was
due to baclofen withdrawal rather than overdose.

¶6 The Taylors assert that the patient suffers from a
permanent neurological disorder, encephalopathy, and allege
that the injury was caused by baclofen withdrawal that occurred
between April 18, 2013, and April 19, 2013, before the pump and
catheter were replaced. The Taylors sued the University of Utah,
University Hospital, University of Utah Physical Medicine and
Rehabilitation Clinic, and the agents, employees, and staff
employed with those institutions that were involved in the
patient’s baclofen treatment (collectively, the Defendants). To
support their theory of causation, the Taylors sought to present
expert testimony at trial. The expert’s testimony would explain
that her theory of causation was the following sequence of
events: “[b]aclofen withdrawal caused a metabolic disturbance,
which caused encephalopathy, which produced months-long
hallucinations and other abnormal behavior, resulting in or
causing permanent memory and cognitive function damage.”

¶7 After deposing the expert, the Defendants filed a motion
in limine to exclude the expert’s testimony, arguing that the
testimony was not based on medical literature or her personal
experience and therefore could not satisfy the threshold showing
of reliability under rule 702 of the Utah Rules of Evidence. The
expert conceded in her deposition that “there is not a single
reported case of baclofen withdrawal in which the patient
remained stable throughout the episode and went on to suffer
permanent neurological injury” and that she “has never seen a
patient experience the injuries that [the patient] claims to have

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suffered.” The expert also conceded that symptoms of baclofen
withdrawal generally subside within forty-eight hours after the
baclofen levels are reinstated and that baclofen withdrawal does
not result in permanent injury if the baclofen levels are properly
reinstated. The Defendants argued that, as a result, there “are no
facts or data to support [the expert’s] opinion” and that her
proposed testimony is “the very type of unreliable testimony
that Rule 702 is intended to prohibit.”

¶8 The district court agreed with the Defendants and
excluded the expert’s testimony. The court concluded that,
because the expert “admits she has never seen [this injury] in her
practice” and has failed to provide medical literature “to support
the argument that encephalopathy—whether caused by a
metabolic disturbance or something else—can last more than 48
hours after therapeutic levels of baclofen are restored,” she
“does not have facts and data sufficient upon which to base her
opinions or to employ her method for evaluating the causal
connection in this case.”

¶9 The Taylors appeal.

ISSUE AND STANDARD OF REVIEW

¶10 The Taylors contend the district court erred in excluding
the expert’s “opinions on proximate cause pursuant to Rule 702
of the Utah Rules of Evidence on the ground that her opinions
were not based on facts and data sufficient to satisfy the
threshold showing of reliability.” 1 “We review a district court’s

1. The Taylors also contend the expert’s testimony should not
have been excluded because the “principles and methods”
underlying her opinion were reliable. Specifically, they argue
that the expert’s opinion on causation was based upon “logical
deduction,” which is a “standard technique[]” that is “generally
accepted by the relevant community of medical experts.” But the
(continued…)

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decision to admit or exclude expert witness testimony for an
abuse of discretion and will not reverse that decision unless it
exceeds the limits of reasonability.” KTM Health Care Inc. v. SG
Nursing Home LLC, 2018 UT App 152, ¶ 28 (quotation
simplified).

ANALYSIS

¶11 We are asked to determine whether the district court
correctly ruled that neither the expert’s experience nor medical
literature supported the expert’s opinion regarding causation
under rule 702(b) or 702(c) of the Utah Rules of Evidence.

¶12 District courts have “wide discretion to determine
whether expert testimony is admissible” under rule 702. KTM
Health Care Inc. v. SG Nursing Home LLC, 2018 UT App 152, ¶ 59
(quotation simplified). The role of the district court is to serve as
a “gatekeeper” and “screen out unreliable expert testimony.”
Eskelson v. Davis Hosp. & Med. Center, 2010 UT 59, ¶ 12, 242 P.3d
762 (quotation simplified). District courts should therefore
“approach expert testimony with rational skepticism.” Id.
(quotation simplified).

¶13 Rule 702 of the Utah Rules of Evidence governs the
admissibility of expert witness testimony. An expert who is
qualified “by knowledge, skill, experience, training, or education

(…continued)
district court did not exclude the expert’s testimony on the basis
that her principles and methods were not reliable. Instead, the
court concluded that the expert lacked sufficient facts and data
“upon which to base her opinions or to employ her method for
evaluating the causal connection in this case.” In other words,
the court did not determine that “logical deduction” is
necessarily an unreliable method, only that the expert lacked
sufficient facts and data to employ such a method.

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may testify in the form of an opinion . . . if the expert’s scientific,
technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.”
Utah R. Evid. 702(a). Before admitting such testimony, the judge
must determine that the proponent has made a threshold
showing of reliability. State v. Lopez, 2018 UT 5, ¶ 20, 417 P.3d
116.

¶14 The threshold showing of reliability can be satisfied “if
the underlying principles or methods, including the sufficiency
of facts or data and the manner of their application to the facts of
the case, are generally accepted by the relevant expert
community.” Utah R. Evid. 702(c). Alternatively, the threshold
showing can be met “by establishing that the principles
underlying [the expert’s] testimony are ‘reliable, . . . based upon
sufficient facts or data, and . . . have been reliably applied to the
facts.’” Lopez, 2018 UT 5, ¶ 22 (quoting Utah R. Evid. 702(b)).
“What is required for a threshold showing of reliability will vary
depending on the complexity of the particular case.” Eskelson,
2010 UT 59, ¶ 15. For example, an expert witness testifying
“regarding his experience as a physician[] in dealing with
similar situations” as the patient in the underlying case does not
need to identify a specific methodology to opine on causation of
the patient’s injuries so long as the expert’s “exposure to a nearly
identical situation forms the basis of the expert’s opinion.” Id.

¶15 Here, the district court ruled that the Taylors had not
made the requisite threshold showing under rule 702(b) because
the expert’s opinion was not “based upon sufficient facts or
data.” Utah R. Evid. 702(b)(2); see also id. R. 702(c) (providing
that, where the threshold showing is based on general
acceptance in the relevant expert community, “the sufficiency of
facts or data” must also be generally accepted). We agree.
Neither the expert’s experience nor the medical literature
provided a sufficient factual basis on which to base her opinion
that the baclofen withdrawal caused the patient’s injury.

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¶16 The Taylors sought to offer the expert’s opinion of
causation based on her experience treating other patients with
baclofen withdrawal. Relying on her experience, the expert
claimed to know that baclofen withdrawal can cause metabolic
disturbances. She also claimed to know that metabolic
disturbances can cause permanent neurological injury, such as
encephalopathy. Employing “logical deduction,” the expert
concluded that encephalopathy can be caused by baclofen
withdrawal. Although such “logical deduction” may be a
reliable method when supported by sufficient facts or data, the
expert conceded in her deposition that “[n]one” of her patients
“have suffered any type of permanent injury from an episode of
[b]aclofen withdrawal . . . [or] overdose.” Thus, her own
experience did not provide her with “exposure to a nearly
identical situation” to form the basis of her opinion. See Eskelson,
2010 UT 59, ¶ 15.

¶17 Nor did the expert provide any supporting medical
literature documenting examples of patients suffering
permanent encephalopathy caused, either directly or indirectly,
by baclofen withdrawal when the baclofen level was reinstated,
as it was in this case. To the contrary, the expert stated that she
had “looked for” but was not “aware of any case similar to [the
patient’s] reported anyplace in the [medical] literature.” Further,
the expert conceded that, according to medical literature,
“patients who suffer [baclofen] withdrawal typically have
symptoms resolved within 48 hours of having [b]aclofen levels
reinstituted.” In fact, “there is not a single reported case of
baclofen withdrawal in which the patient remained stable
throughout the episode and went on to suffer permanent
neurological injury,” such as encephalopathy.

¶18 Because the expert’s opinion regarding causation of the
patient’s injuries was not supported by any personal experience
or medical literature, the district court did not exceed its
discretion in excluding the expert’s testimony for lack of
sufficient facts and data.

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CONCLUSION

¶19 We conclude the district court did not exceed its
discretion when it excluded the expert’s testimony for lack of
sufficient facts or data. Accordingly, we affirm.

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